Citation Nr: 1219794
Decision Date: 06/06/12 Archive Date: 06/20/12
DOCKET NO. 09-35 912 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUE
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
INTRODUCTION
The Veteran served on active duty from May 1967 to May 1969. He was stationed in Vietnam from October 1967 to March 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California.
Although the Veteran initially had requested a Travel Board hearing in his substantive appeal, he subsequently withdrew that request in November 2011. See 38 C.F.R. § 20.702(e) (2011).
Regarding the Veteran's right to representation, the Board notes that in an October 2009 letter to the Veteran, the RO stated that they had received correspondence from Mr. G.K.C., who reported that he was representing the Veteran free of charge. However, the RO informed the Veteran that Mr. C. was not accredited to represent claimants in claims before the VA. See 38 C.F.R. § 14.629(b). Thus, the RO indicated that because Mr. C. was not accredited and there was no VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) on file for him, VA would not recognize Mr. C. as the Veteran's representative. The RO enclosed a VA Form 21-22 so that the Veteran could designate an accredited attorney, accredited agent, or accredited representative of a recognized veterans service organization if he so desired. 38 C.F.R. § 20.602 (2011). The evidence of record is negative for a response from the Veteran.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Veteran contends that his service-connected disabilities prevent him from engaging in any type of gainful employment and that as a result, he should be awarded a total disability rating based on individual unemployability (TDIU) due to service- connected disabilities. Specifically, the Veteran maintains that due to his prostate cancer, he had to stop working. He reports that his sleep was interrupted because he had to get up so many times in the middle of the night to urinate. Due to his interrupted sleep, he had to sleep during the day when possible.
The Veteran's service-connected disabilities are as follows: prostate cancer (60 percent disabling); diabetes mellitus, type II, with vitreous hemorrhage to the right eye and erectile dysfunction (40 percent disabling); urinary incontinence (40 percent disabling); posttraumatic stress disorder (PTSD)(30 percent disabling); peripheral vascular disease of the left lower extremity (20 percent disabling); peripheral neuropathy of the left lower extremity (10 percent disabling); peripheral neuropathy of the right lower extremity (10 percent disabling); tinnitus (10 percent disabling); and bilateral hearing loss (noncompensable). In addition, the RO has granted 38 U.S.C.A. § 1114 (k) (1) special monthly compensation based on loss of use of creative organ. The combined schedular evaluation has been 100 percent since March 30, 2011.
Historically, VA would treat the TDIU issue as moot from March 30, 2011. VA General Counsel (GC) had issued a precedent opinion holding that receipt of a 100 percent scheduler rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See VA O.G.C. Prec. Op. No. 6-99; Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).
In 2008, however, the United States Court of Veterans Appeals (Court) issued Bradley v. Peake, 22 Vet. App. 280 (2008), which is contrary to GC's previously noted precedent opinion, since withdrawn in response to Bradley. According to the Court in Bradley, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU rating even where a 100 percent schedular rating is already in effect.
In this case, the Veteran is in receipt of a combined 100 percent schedular rating for multiple disabilities. He is also is receipt of SMC, but at the (k), not higher (s) rate. It is thus possible, depending upon the severity of each of the Veteran's service-connected disabilities, that a separate TDIU rating could benefit the Veteran.
SMC is payable at the (s) rate when a veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s) (West 2002). These benefits are not available when the 100 percent disability rating is based on multiple disabilities, none of which is rated 100 percent disabling, or which arise from a single etiology or accident. Buie v. Shinseki, 24 Vet. App. 242, 249-50 (2010); Bradley v. Peake, 22 Vet. App. 280, 290-91 (2008). At present, the Veteran's disabilities do not meet these criteria.
VA has a duty to maximize the benefits to which a veteran is entitled. This duty necessitates assessing all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A. § 1114. Buie, 24 Vet. App. at 250-51. In this case, this duty translates to considering whether since March 30, 2011, the Veteran is eligible for a TDIU based solely on any one of his service-connected disabilities.
Although the Veteran is receiving a combined 100 percent schedular rating for multiple disabilities effective from March 30, 2011, in regard to the question of whether a TDIU is warranted prior to March 30, 2011, the Board notes that prior to March 30, 2011, service connection was in effect for the following: prostate cancer, PTSD, diabetes mellitus, type II, peripheral vascular disease of the left lower extremity, peripherally neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, tinnitus, and bilateral hearing loss. The evidence of record includes opinions which address the impact of certain service-connected disabilities on the Veteran's ability to work. In a February 2007 VA PTSD examination which was conducted by QTC Services, the examiner noted that the Veteran was a college graduate and had worked for 30 years at the California Youth Authority. Following the mental status evaluation, the examiner diagnosed the Veteran with PTSD and reported that it did not appear that the Veteran had significant impairment in his occupational functioning due to his symptoms.
In February 2009, the Veteran underwent a VA examination which was conducted by QTC Services. At that time, he stated that due to his prostate cancer, he had urinary incontinence which required a pad as often as six times a day. Following the physical examination, the examiner diagnosed the Veteran with prostate cancer, status post radiation therapy with residual urinary incontinence and erectile dysfunction. In regard to the Veteran's functional impairment, the examiner indicated that the Veteran was able to perform sedentary activities of employment. According to the examiner, the Veteran was able to stand or walk for two hours in an eight hour day, and sit for six hours in an eight hour day. The examiner stated that the Veteran should not drive or work with heavy equipment.
In a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, dated in June 2009, the Veteran's former employer, California Youth Authority, stated that the Veteran had worked from April 1973 to November 2000, as a treatment team supervisor. The reason given why the Veteran stopped working was "service retired."
In April 2011, the Veteran underwent a VA examination. At that time, the examiner stated that the Veteran had to take insulin to treat his diabetes mellitus. According to the examiner, the effect of the Veteran's diabetes on his usual occupation was limited exertion due to fatigability.
In light of the above, although VA examiners have addressed the impact of certain service-connected disabiities on the Veteran's ability to work, no examiner has considered whether all of the Veteran's service-connected disabilities prior to March 30, 2011, collectively, rendered the Veteran unable to secure of follow a substantially gainful occupation. Thus, the Board finds that such an opinion is warranted. See Friscia v. Brown, 7 Vet. App. 294 (1995).
Accordingly, the case is REMANDED for the following action:
1. Refer the Veteran's claims file to a medical professional to determine to what extent the Veteran's service-connected disabilities prior to March 30, 2011, provided limitations on his ability to obtain or retain employment, and whether on and after March 30, 2011, any of the Veteran's service-connected disabilities specifically render him unable to secure and/or follow substantially gainful employment.
Based on his/her review of the case, the reviewer must provide an opinion on the following:
(A) Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's service-connected disabilities prior to March 30, 2011 (prostate cancer, PTSD, diabetes mellitus, type II, peripheral vascular disease of the left lower extremity, peripherally neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, tinnitus, and bilateral hearing loss) alone precluded him from securing and following substantially gainful employment consistent with his education and occupational experience? All of the Veteran's service-connected disabilities, collectively, must be considered when answering the aforementioned question.
(B) Is it at least as likely as not (50 percent or greater degree of probability) that any of the Veteran's service-connected disabilities on and after March 30, 2011 (all of the disabilities listed above and also diabetes mellitus, type II, with vitreous hemorrhage to the right eye and erectile dysfunction, and urinary incontinence) alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience?
The reviewer is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the claim of unemployability; less likely weighs against the claim.
2. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. In doing so, the RO should specifically consider whether a TDIU is warranted prior to March 30, 2011. The RO should also consider whether, as of March 30, 2011, the Veteran is eligible for a TDIU based solely on any one of his service-connected disabilities. If such action does not grant the benefit claimed, the RO should provide the Veteran a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).